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Hatch Act Law Georgia Attorney Review

January 4, 2013

Law Firm:
Bates Baum - Atlanta Office

Hatch Act investigations are generally administrative, and violations believed to have been found by the Office of Special Counsel (OSC) after investigation are the subject of a complaint filed by the Special Counsel with the Merit Systems Protection Board (MSPB) against the alleged offender. Bates & Baum did not appear as counsel on any of the 2010-2011 cases summarized below. The law firm, established in 1974, is located at 3151 Maple Dr., NE, Atlanta, GA 30305, and can be contacted at 404-262-6272 or [email protected].

The Hatch Act of 1939 is codified at 5 U.S.C. §§7321-7326. If found in violation by the MSPB, the federal employee is dismissed from employment or either suspended for a period of 120 days or less if all members of the Merit Systems Protection MSPB agree on the lesser penalty. In Hatch Act cases involving state or local employees, MSPB determines whether removal is warranted, but cannot impose a lesser penalty. Legislation adopted by the Congress on December 19, 2012, is being presented to the President for signature which would provide a more flexible range of penalties including formal reprimand, reduce pay grade, bar from federal employment for up to five years, or fine an employee no more than $1,000.00. An administrative judge (AJ) attached to a MSPB regional office, an employee of MSPB, is assigned to hear most federal employee appeals. For instance, an AJ assigned to the Atlanta Regional Office would hear and issue an Initial Decision (ID) for appeals filed in six states, Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee. However, OSC enforcement complaints, an original jurisdiction of the MSPB, are heard and decided by an administrative law judge (ALJ) appointed to the case by the MSPB.

The MSPB organic statute makes specific references to “administrative law judges” but does not specifically refer to administrative judges, stating “any employee of the Board [can be] designated by the Board” to hear such cases. 5 U.S.C. §1204. MSPB regulations define “Judge” to include “Any person authorized by the Board to hold a hearing or to decide a case without a hearing, including the Board or any member of the Board, or an administrative law judge appointed under 5 U.S.C. §3105 or other employee of the Board designated by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge.” 5 C.F.R. §1201.4. ALJs are appointed by the Office of Personnel Management (OPM), and are subject to qualifications set out in OPM regulations. 5 U.S.C. §5372. By statute, “Administrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.” 5 U.S.C. §1305. This limited charter of independence for ALJs and OPM’s higher qualification standards for ALJs must be considered a plus for the federal Hatch Act respondent whose case falls within MSPB’s original Hatch Act jurisdiction requiring MSPB’s appointment of an ALJ.

The Hatch Act of 1939 was intended to prevent federal employees from participating in partisan political activity in an effort to minimize corruption. In 1940 it was expanded to cover state and local employees “whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal Agency¿.” 5 U.S.C. §1501 [exceptions in 4(a) and (b)]. (5 U.S.C. §118k(a) was recodified in 1966 at 5 U.S.C. §§1501-1503). State and local employees subject to the Hatch Act continue to be covered while on annual leave, sick leave, leave without pay, administrative leave, or furlough. A state or local officer or employee is not prohibited from running in a non-partisan election. Under the newly passed legislation presented to the President, local and state employees would not be in violation of the Hatch Act by running for a partisan office. If the Merit Systems Protection Board finds that an employee violated the Hatch Act and that the violation warrants dismissal from employment, the employing agency must either remove the employee or forfeit a portion of its federal assistance equal to two years’ salary of the employee. If within eighteen months of his removal, the employee becomes employed by a state or local agency within the same state, then that agency, or the agency from which the employee was removed, may lose some of its federal funding. While appeals from the decision of the MSPB for federal employees are directed to the Court of Appeals for the Federal Circuit in Washington, D.C., state and local employee appeals from the MSPB are by petition to the United States District Court for the district where the employee resides. 5 U.S.C. §1508. For example, counties comprising the three judicial districts of Georgia, i.e., Northern, Middle, and Southern, are found at 28 U.S.C. §90.

In 1993 the Hatch Act was amended to clarify that federal employees have certain rights to engage in personal, off duty, voluntary partisan activity, speech, and expression. Employees of certain federal agencies “may take an active part in political management or political campaigns.” 5 U.S.C. §7323(b)(2). In an October 21, 2010, Washington Post article, Staff Writer Lisa Rein interviewed Ana Galindo-Marrone, chief of OSC’s Hatch Act unit, who stated she was the only attorney in 1999 investigating violations of the Hatch Act. When interviewed she stated there were 22 attorneys investigating violations, and in fiscal 2009 there were 10 prosecutions. Half their time, according to her, was dedicated to the advisory function, with 4,320 advisory opinions issued in that year. OSC is an independent federal investigative and prosecution agency which has substantially more duties than under the Hatch Act. Other federal statutes it operates under are the Civil Service Reform Act, Whistleblower Protection Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA). OSC is charged with protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. The OSC staff generally will not disclose the name of the filer of a complaint because the OSC relies upon individuals to report suspected violations.

In 2010, OSC appeared in 3 Hatch Act cases decided by the MSPB full Board in Washington, D.C., all involving federal employees. In each of the 3 cases the decision of the administrative law judge was reviewed by the Members of the MSPB, who are appointed by the President. The findings of a violation by the ALJ in all 3 cases were approved by the MSPB. In one case the recommended decision (RD) of the administrative law judge that a 60 day suspension be ordered rather than removal was excepted to by the OSC. MSPB upheld the exception, granting OSC’s petition for review and ordering removal of the Treasury employee. Special Counsel v. Ware, 114 M.S.P.B. 128 (2010).

In another case, the MSPB approved the agreement of the Postal Service employee and the OSC that the employee running successfully for Township Clerk as a candidate for the Democratic Party in both primary and general election would be penalized by a 30 day suspension. The administrative law judge recommended that the settlement agreement be approved. He found mitigating circumstances: she was the only candidate, she had a passive candidacy, she resigned once notified of the OSC investigation, and she had an unblemished record with the Postal Service. The ALJ’s RD was adopted by the MSPB. Special Counsel v. DeWitt, 113 M.S.P.R. 458 (2010).

Special Counsel v. Mark, 114 M.S.P.R. 516 (2010), featured an Internal Revenue Service agent who both parties agreed violated the Hatch Act. He forwarded to numerous individuals including co-workers an email soliciting online contributions from then presidential candidate Barack Obama. The email was forwarded from the Revenue Agent’s government office and included his name, title, group, duty location, and telephone number. The administrative law judge found dismissal warranted, and the only issue before the MSPB was whether dismissal was appropriate. The full board MSPB granted the employee’s petition for review and reduced “by “unanimous vote” the penalty from removal to 120 day suspension. In another 2010 case, an administrative law judge found that a federal agency doctor violated the Hatch Act while on duty in his federal work place when he sent an invitation to a campaign fundraiser to several persons including subordinate employees. He also sent an email to a colleague that solicited a campaign contribution. His petition to review was denied by MSPB and removal ordered. Special Counsel v. Bagdade, 115 M.S.P.R. 532 (2010).

In 2011, a municipal police chief was charged by OSC for a violation of the Hatch Act by running as a candidate in a partisan election while employed in a local government program that was financed in whole or part by United States Department of Justice loans or grants. OSC contended that the respondent was aware of the violation based upon the grant documents he signed and warnings from the OSC that he either withdraw from his candidacy or resign as police chief.

He continued to run for state senate, was elected, and sworn in. The administrative law judge issued an ID finding that the respondent’s connection to the grants was not de minimis or time barred and the violation warranted removal. The MSPB affirmed the ID with dissent of Board Vice Chairman Wagner. Special Counsel v. Greiner and Ogden City, Utah, 117 M.S.P.R. 117 (2011).

In one 2011 case, the administrative law judge dismissed OSC’s Hatch Act complaint because it lacked the degree of particularity required by Board regulations and case law. OSC alleged that the respondent engaged in political activity while on duty in a government building on a government owned computer. Offenses were alleged “[t]hroughout 2008” and involved emails and documents “directed toward the success of Barack Obama’s candidacy for President.” The administrative law judge granted the motion to dismiss because the complaint was so vague and discovery documents so voluminous and undifferentiated that the respondent was left to “guess at the nature of the charges and the documents that were the factual basis for those charges.” The MSPB affirmed and modified the ID stating that the core of constitutional due process is the right to notice and a meaningful opportunity to respond. Special Counsel v. Smith, 116 M.S.P.R. 520 (2011). The Board did not permit OSC to amend the complaint, but directed the Clerk of the Board to accept OSC’s proffered amended complaint as a new complaint for docketing.

In another 2011 case, a federal employee was found by the administrative law judge to have violated the Hatch Act while engaging in political activity while on duty and in a facility occupied in the discharge of official duties. She composed and disseminated fundraising invitation emails while on duty, and after receiving advice from her ethics coordinator to cancel the event, hosted a fundraiser in her home. As a result, the administrative law judge ordered her removal from employment, and MSPB denied her petition for review. Special Counsel v. Casey, 116 M.S.P.R. 409 (2011).

I have not reviewed any cases decided by an ALJ where there was no petition for review filed with the MSPB by either the employee or the OSC in 2010-2011. None of the MSPB cases cited were reviewed by the Court of Appeals for the Federal Circuit during this time. There should have been no opportunity for a state or local government employee to file a petition with a federal district court, there apparently being only one known state or local employee case decided by the MSPB, and it approved the settlement agreement. While the number of Hatch Act cases reviewed by the MSPB is small, there were numerous advisory opinions. According to the U.S. Office of Special Counsel Fiscal Year 2011 Annual Report, the Hatch Act unit issued 283 formal written opinions, 1,168 email opinions, and 1,607 oral opinions. Some violations were corrected by OSC warning and compliance of those accused of violation. Of those state or local employees who were candidates for partisan public office, the 2011 Annual Report states that in 39 cases, OSC achieved corrective action with 23 candidates withdrawing and 16 employees resigning employment.

There will be another article on Hatch Act cases decided in 2012, and more explicit information on the new Hatch Act legislation passed by the Congress. Changes in the Hatch Act may generate more public notice as well as encourage more familiarity among public employees who look to widen their political activity and consider possible candidacy as well as those who may be alert to ever present violations.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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